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What Comes Next In That Contested Election In North Carolina

It has been 13 days since we last wrote about potential election fraud in the North Carolina 9th District, and we are no closer to a resolution. The week of Nov. 26, the North Carolina State Board of Elections twice refused to certify the results of the congressional election between Republican Mark Harris and Democrat Dan McCready as both reports from voters and irregular patterns in the data suggested that absentee votes in the district were being illegally cast or discarded. As it currently stands, the extent of the suspected election fraud could be enough to change the outcome of the election — Harris leads by just 905 votes. What follows is an update of what’s happened in the past two weeks, including who might be connected to the alleged fraud, what types of voters may have been targeted and how this election might be resolved.

The strategist at the heart of the controversy

Much of the scrutiny over the absentee-ballot irregularities in the 9th has centered on one political operative: Leslie McCrae Dowless, who worked for a consulting firm hired by the Harris campaign. Dowless was an independent contractor based in Bladen County (one of two counties where the most irregularities have been identified).

In an affidavit, a Bladen County voter claimed that Dowless told him he had “over 80 people working for him” as part of an absentee-voter effort for the Harris campaign. It’s not illegal to do things like help voters apply to get an absentee ballot, but as we wrote previously, the affidavit was released at the same time as others that described people coming to voters’ doors and collecting their unsealed and sometimes incomplete absentee ballots — which is illegal.

This isn’t the first time that Dowless’s candidate has benefited from odd absentee-ballot results in Bladen County. In the 2018 Republican primary for the 9th District, Harris won 96 percent of the absentee-by-mail ballots cast in Bladen, a much higher percentage than the 62 percent he got from votes cast by other methods in the county. Two years earlier, the candidate Dowless worked for in the primary won 221 of Bladen’s 226 mail-in absentee ballots. And Philip Bump of the Washington Post identified two other candidates for whom Dowless worked over an eight-year period who did far better in Bladen’s mail-in absentee ballots than in ballots cast the same way in other counties.

Still, it wasn’t until a local reporter at a TV station in Charlotte obtained copies of 159 absentee-ballot envelopes1 that Dowless was directly implicated in a potentially illegal absentee-ballot operation. The reporter discovered something very unusual: The same handful of people witnessed the signing of dozens of ballots. Two of the witnesses told the reporter that Dowless paid them to collect mail-in absentee ballots. The witnesses did not admit to collecting unsealed ballots or to voting on behalf of other people, but in North Carolina, even delivering sealed ballots for other people, unless they are close family members, is against the law.

Last Friday, the North Carolina State Board of Elections acknowledged that Dowless was a person of interest in its investigation of absentee-voting irregularities. A document it posted online as an exhibit in the investigation shows that Dowless turned in at least 590 of the 1,237 absentee-ballot requests (nearly half!) in Bladen County. Although he has largely avoided the press, Dowless has denied all wrongdoing.

What the data shows

As we highlighted two weeks ago, Bladen County and neighboring Robeson County had unusually high levels of absentee ballots requested or cast. Harris also received an incredibly high proportion of the mail-in absentee votes in Bladen considering how few registered Republicans voted by mail there. Only 19 percent of Bladen County’s accepted mail-in absentee ballots were cast by registered Republicans, yet mail-in absentee ballots leaned heavily Republican; in every other county in the 9th District, mail-in ballots favored the Democrat.

But new information digs down past the county level to find anomalies in certain types of neighborhoods. In an analysis of absentee-by-mail ballots in the 9th District, Kevin Morris and Myrna Pérez at the Brennan Center for Justice found that mail-in absentee ballots from low-income Census tracts were more likely to have been spoiled (that is, declared invalid) than those from high-income areas in the 9th and those from low-income areas outside the 9th. Low-income neighborhoods also had a higher rate of unreturned mail-in ballots. If someone was in fact running a large-scale election-tampering operation, the increase in unreturned ballots could mean that someone was discarding some legitimate ballots before they could be returned, or that voters themselves were discarding ballots fraudulently requested in their names by someone hoping to intercept them and fill them out. According to Morris and Pérez, this discrepancy in the returned ballot rate could be an indication that lower-income voters were specifically targeted for election fraud.

The Raleigh News & Observer calculated that, in Robeson County, 69 percent of mail-in absentee ballots requested by Native American voters and 75 percent of those requested by African-American voters were not returned, well out of line with the rest of the district. The Brennan Center also found that nonwhite voters’ ballots were more likely to be spoiled.

What’s next?

An evidentiary hearing held by the state board of elections was initially scheduled to be held on or before Dec. 21. However, NBC has since reported that the board’s investigation has become so sprawling that the hearing may need to take place after Dec. 21. The Washington Post reported on Dec. 3 that the board had identified hundreds of people to potentially interview, which could take weeks.

The investigation has also expanded to the point where the FBI and a U.S. attorney are involved. We also learned that the Wake County district attorney has been conducting a separate active criminal investigation into election fraud in Bladen County since January 2018.

The specter of election fraud has put Harris’s initial win very much in doubt. The Associated Press retracted its call of the race after allegations of election fraud surfaced, and McCready has withdrawn his concession. After initially calling on the board to certify the election, Harris has softened his tone, saying in a Friday statement that he would “wholeheartedly support” a new election if enough fraud is found that it could have affected the outcome. The state GOP has gone even further, explicitly calling for a new election amid allegations that Bladen County counted its early votes prematurely and allowed non-election workers to view them before Election Day, potentially giving one side inside information.

But the state board of elections has the authority to call a new election even if the fraud wasn’t widespread enough to change the outcome. Gerry Cohen, a legal expert and longtime staffer for the North Carolina legislature, told FiveThirtyEight that he believes the board might invoke a provision in the law that would allow them to hold a new election because “irregularities or improprieties occurred to such an extent that they taint the results of the entire election and cast doubt on its fairness.” Cohen told FiveThirtyEight he’s unsure when the board might vote on whether to hold a new election. It could be the same day as the evidentiary hearing, but he cautioned that it would not occur before the evidentiary process was complete.

If the state board of elections does indeed vote to hold a new election, there’s another question that will need to be resolved: Who will be running. As the law currently stands, a new election would be held between the same three candidates as before — Harris, McCready and Libertarian Jeff Scott. Since Dowless was working on behalf of the Harris campaign, some Republicans are worried that the fraud allegations have made Harris unelectable. On Wednesday, however, the Republican-controlled legislature passed a bill that that would require a primary do-over if a new general election is called, which would give each party a chance to nominate someone else. Democratic Gov. Roy Cooper hasn’t yet said whether he will sign it.

The U.S. House of Representatives has the final say on seating its own members. The Federal Contested Elections Act allows a losing candidate to challenge the results of an election before the House, which will review the evidence and decide to seat the initial winner, seat the challenger or declare the seat vacant. In the opinion of both Cohen and other legal experts, this process could play out regardless of whether the state board of elections certifies the results or calls a new election.

If the House does declare the North Carolina 9th District vacant, Cohen said, a normal special election would be held, including a primary. (Both the Harris and McCready campaigns sidestepped FiveThirtyEight’s questions on whether they would run in a hypothetical special election.) In this scenario, because federal law requires absentee ballots to be sent to overseas voters at least 45 days before every stage of an election, and North Carolina law requires a runoff if no candidate receives more than 30 percent of the vote in the primary, Cohen estimates that a new general election in the 9th District may not be held until August. But we shouldn’t have to wait nearly that long to have a much clearer idea of whether fraud did indeed occur in the North Carolina 9th.

Footnotes

  1. In order to vote absentee-by-mail in North Carolina, two witnesses or a notary public must sign the ballot envelope before it is sent in.

Nathaniel Rakich is FiveThirtyEight’s elections analyst.

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